BAUCHI STATE INVESTMENT & PROPERTYDEVELOPMENT CO. LTD & ANOR v. WANKA & ANOR

CITATION: (2016) LPELR-40433(CA)

In the Court of AppealIn the Jos Judicial Division

Holden at Jos

ON FRIDAY, 29TH APRIL, 2016Suit No: CA/J/312/2014

Before Their Lordships:

ADZIRA GANA MSHELIA Justice, Court of AppealJOSEPH TINE TUR Justice, Court of AppealRIDWAN MAIWADA ABDULLAHI Justice, Court of Appeal

Between1. BAUCHI STATE INVESTMENT AND PROPERTYDEVELOPMENT COMPANY LIMITED2. MALLAM MUSTAPHA MAHE

- Appellant(s)

And1. ALHAJI AMINU YAKUBU WANKA2. ATTORNEY-GENERAL OF BAUCHI STATE - Respondent(s)

RATIO DECIDENDI

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1 JUDGMENT AND ORDER - VALIDITYOF JUDGMENT : Whether a judgment ora decision of a Court remains valid untilset asideA judgment or decision of a competentCourt of record is valid from the date ofdelivery until set aside by the Courteither ex debito justitiae on grounds oflack of jurisdiction or by a Court ofAppeal. See Akinbobola vs. Plisson Fisko(1991) 1 NWLR (Pt.167) 270 at 299. Anorder of Court is needed to set aside avalid judgment even on grounds of beinga nullity. See Akinfolarin vs. 17 Akinola(1995) 4 SCNJ (Pt.1) 30 at 48-49;Aladegbemi vs. Fasanmado (1983) 3NWLR (Pt.81) 129.Per TUR, J.C.A. (Pp.17-18, Paras. E-A) - read in context(2

016)

LPELR

-4043

3(CA)

2 WORDS AND PHRASES - "ACTION":Meaning of the word "action""An "??action"?�, according to the legalmeaning of the term, is a proceeding bywhich one party seeks in a Court ofjustice to enforce some right against, orto restrain the commission of somewrong by another party. More concisely,it may be said to be the legal demand ofa right, or the mode of pursuing a right orjudgment. The word further implies theexistence of parties, of an alleged right,of an alleged infringement thereof (eitheractual or threatens), and of a Courthaving power to enforce such right. In itswider meaning the term includes bothcivil and criminal proceedings..." It is,however, generally used in a morerestricted or popular sense as denoting acivil action commenced by writ or plaint.See Halsbury'??s Laws, 3rd edition citedin Words and Phrases Legally Defined,Vol.1 (A-C)." Per TUR, J.C.A. (P. 20, Paras.A-E) - read in context

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3 WORDS AND PHRASES - "MOTION":Definition of the word "motion""A "??motion" is defined in Osborn'??sConcise Law Dictionary, 9th edition, page257 as, "An application to a Court orJudge for an order directing something tobe done in the applicant's favour"PerTUR, J.C.A. (P. 20, Paras. E-F) - read incontext

4 WORDS AND PHRASES - "VALIDATE":Meaning of the word "validate""To "??validate" is to legally render orstrengthen something valid or to renderor declare legally valid; to confirm thevalidity of (an act, contract, deed, etc,) orlegalize. See the Shorter Oxford EnglishDictionary of Historical Principles, Vol.2,page 2449. "Per TUR, J.C.A. (P. 22, Paras.A-B) - read in context

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5 INTERPRETATION OF STATUTE -STATUTORY PROVISION: Position ofthe law as regards a case not providedfor in a statute"In Maxwell On the Interpretation ofStatutes, 12th edition, page 33 appearsthe following statement of the law: "Acase not provided for in a statute is not tobe dealt with merely because thereseem, no good reason why it should havebeen omitted, and the omission appearsi n c o n s e q u e n c e t o h a v e b e e nunintentional."?� See Lloyds Bank vs.Elliot (1947) 1 All E.R. 79."Per TUR, J.C.A.(P. 24, Paras. E-F) - read in context

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JOSEPH TINE TUR, J.C.A. (Delivering the LeadingJudgment): On 19th September, 2013 Alhaji AminuYakubu Wanka being the judgment creditor brought anapplication pursuant to Order 40 Rule 7 and Order 47Rule 1 of the High Court of Bauchi State Rules readtogether with Order 11 Rule 10 of the JudgmentEnforcement Rules Cap.407, Laws of the Federationof Nigeria, 2004 against (1) Attorney-General of BauchiState (2) Bauchi State Investment and PropertyDevelopment Company Limited and (3) Mallam MustaphaM a h e , d e s c r i b e d i n t h e m o t i o n a s t h e"��Respondents/Judgment Debtors."

The reliefs claimed were couched as follows:"��1. An order of revalidation of the judgment of thissuit by this Honourable Court.2. An order on the respondents/judgment debtors(particularly 1st and 2nd respondents) to comply withthe orders of the judgment to pay �all the salariesand allowances� of the applicant � accessN53,971,237.02 as at date.And for such further order(s) as this Court may deemfit to make in the circumstance."

Samuel Modi Dubagari swore to an affidavit in support ofthe

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application as follows:

"��1. That I am the Litigation Secretary in the

Chambers of Irorakpor & Co. and that by virtue of my

position aforesaid, I am conversant with the facts of

this case.

2. That I have the authorities of my employer and the

applicant to depose to this oath.

3. That I have been informed by the applicant and

Counsel handling this matter, Irorakpor C. C., Esq. in

our office, No.12 Ahmadu Bello, Bauchi, on 18th

September, 2013, at 11:00am, information I verily

believe them to be true thus:

(a) That the judgment in this suit was entered on

12th March, 2001 by Honourable Justice S.S. Darazo

(OFR) of the then High Court 1. Annexed as Exhibit

�1� is the judgment order.

(b) That the judgment was revalidated on 1st March,

2004 directing the respondents to comply with the

judgment declaring the order of his compulsory leave

and subsequent dismissal a nullity and to pay the

applicant all his salaries and allowances. Annexed as

Exhibit "2"�� is the revalidation order.

(c) That despite the

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order, pleas and personal contacts by the applicant

and well wishers to the respondents the situation as

at date is that the respondents have refused, failed

and neglected to comply with orders of the Court.

(d) That numerous correspondences dated from 26th

April, 2001 – 4th May, 2005 were written demanding

for payment of the applicant salaries and allowances

all to no avail.

(e) That the High Court on 9th May, 2005 endorsed a

writ of execution (Fifa) against the 2nd respondent –

the employers of the applicant. Annexed Exhibit “3” is

the writ of attachment.

(f) That the writ was not executed due to arm twisting

methods exacted on the applicant and caution to

explore other peaceful method that will lead to a

peaceful resolution of the matter.

(g) That the applicant has explored all known

peaceful means at resolving the matter to no avail.

Exhibit “4” annexed is one of several letters of appeal

by the applicant.

4. That the monetary sum as at date due to the

applicant from the judgment is

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N53,971,237.02.

5. That the fruit of the judgment is the payment of all

his salaries and allowances till the date of such

payment which as at date is N53,971,237.02.

6. That the applicant has been denied this fruit of the

judgment and it will only be proper and just to grant

this motion.

7. That I make this oath bonafide and in accordance

with the Oath Act, 1990.”

Leave was granted the 2nd and 3rd respondents to

rely on a counter-affidavit by Aisha Musa Zakari,

Litigation Secretary in Doka Chambers on 11th

December, 2013 as follows:

“1. That I am a Litigation Secretary in Doka

Chambers, Jos Solicitors to the 2nd and 3rd

respondents by virtue of which position I am

conversant with the facts deposed to herein.

2. That I have the consent and authority of the 2nd

and 3rd respondents and my employers to depose to

the facts herein.

3. That I have been informed by the Managing

Director of the 2nd respondent and the 3rd

respondent while briefing A.A. Sangei, Esq. in Doka

Chambers, Jos on 5th December,

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2013 at 9:30am and I verily believe the information to

be true that:

(a) That the judgment which the applicant wants to

be revalidated is not placed before this Honourable

Court.

(b) The applicant did not himself comply with

judgment of the High Court 1, Bauchi.

(c) That up till now the applicant did not satisfactorily

account for shares worth over N65,000,000.00 (Sixty

Five Million Naira only) as ordered by the High Court

1, Bauchi.

(d) The judgment of the High Court 1, Bauchi which

the applicant is seeking for its revalidation and

enforcement was delivered on 1st March, 2001 and

this motion is filed on 25th September, 2013 over 12

years.

(e) The name of the present Company Respondents is

Bauchi Investment Corporation Limited and not

Bauchi State Investment and Property Development

Company Limited.

4. That I know as facts that:

(a) The judgment being sought to be revalidated and

enforced is now statute barred for being over 12

years.

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(b) The processes attached to the applicant’s

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Motion on Notice are Public documents and they are

not Certified True Copies.

(c) The applicant did not account for the respondents’

missing shares worth N65,000,000.00 (Sixty Five

Million Naira only).

5. That it is in the interest of justice to refuse this

application.

6. That I, Aisha Musa Zakari, do solemnly and

sincerely declare that I make this declaration in good

faith conscientiously believing its contents to be true

to the best of my knowledge, information and belief

and in accordance with the Oaths Act.”

Samuel Modi Dubagari deposed to a Further and Better

Affidavit on 29th January, 2014 as follows:

“1. That I am the Litigation Secretary in the

Chambers of Irorakpor & Co. and that by virtue of my

position aforesaid, I am conversant with the fact of

this case.

2. That I have the authorities of my employer and the

applicant to depose to this further and better

affidavit.

3. That I have been informed by the applicant and

Counsel handling this matter, Irorakpor C.C., Esq. in

our

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office, No.12 Ahmadu Bello Way, Bauchi, on 22nd

January, 2014, at 11:00am, information I verily

believe them to be true thus:

(a) That the 3rd arm of the judgment in suit

No.BA/30M/1999 delivered on 12th March, 2001 is to

the effect “that the respondents are hereby ordered to

consider the applicant for reinstatement should he

satisfactorily account for the alleged missing shares.”

(b) That by the said 3rd arm of the judgment, the

judgment could not be enforced until the applicant

complies with the order.

(c) Pursuant the applicant on 27th July, 2001 in

compliance with order accounted for the alleged

missing shares. Annexed as Exhibit “SMDF” is the

explanatory note by the applicant.

(d) Thereafter the judgment was revalidated on 1st

March, 2004 by the Honourable Judge – Justice S.S.

Darazo (OFR) of the then High Court 1 – Further

annexed as “SMDF2” and “3” are the C.T.C. of both

judgments.

(e) That upon revalidation on 1st March, 2004 the 3rd

arm order of the judgment of 12th March, 2001

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– that i s the appl icant be cons idered for

reinstatement should he satisfactorily account for the

alleged missing shares – was excluded in the

revalidated judgment of 1st March, 2004 – thus

making the judgment enforceable against the

respondents.

(f) That the judgment of 1st March, 2004 is the

relevant and subsist ing judgment in suit

No.BA/30M/1999 – which the applicant now sought to

enforce in this motion.

(g) That due to the refusal of the respondents to

comply with the revalidated judgment of 1st March,

2004, the applicant pursuant to the 3rd order of the

judgment on 9th May, 2005 applied for a writ of

execution (Fifa) against the respondents/judgment

debtors for the then calculated judgment sum of

N10,761,896.00. Certify copy of the writ annexed as

Exhibit “SMDF4”.

4. That till date the writ has remained un-executed

due to arm twisting method employed by the

respondents.

5. That parties later restore to explore peaceful

resolution of the matter – which till date has proved

unfruitful.

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6. That it was in the

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spirit of the peaceful settlement that Exhibit “4” of

the applicant’s main motion of 19th September, 2013

was written.

7. The said letter – Exhibit “4” was written and dated

9th August, 2010.

8. That from 1st March, 2004 (the date of the

revalidated judgment) to 19th September, 2013 (the

date of the applicant’s present motion) is less than

nine (9) years.

9. Further from 9th August, 2010 (when Exhibit “4”

the last correspondence was written) to 19th

September, 2013 (the date of the applicant’s present

motion) is about four (4) years.

10. That both dates in paragraphs 8 and 9 are less

than ten (10) years.

11. That the interest of justice will be better served by

the grant of the applicant’s application for judgment

in suit No.BA/30M/1999.

12. That I make this oath bonafide and in accordance

with the Oath Act, 1990.”

The learned Chief Judge heard the application and after

considering the written addresses of Counsel, held on 21st

May, 2014

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at page 77 lines 4 to page 79 lines 1-13 of the printed

record as follows:

"The judgment creditor has shown from paragraphs

3(a)-(g) stated above that the orders contained in

Exhibit "��SMDF2"�� were revalidated by the orders

in Exhibit "��JMDF3" following his accounting for the

alleged missing shares as ordered by Hon. Justice S.S.

Darazo. In Exhibit "SMDF1"��, learned Counsel for

the judgment creditor wrote a letter to the Attorney-

General of Bauchi State attached to the letter, the

judgment creditors�� explanation of unaccounted

shares. The explanation has not been controverted by

any other report showing the contrary. I therefore

agree that the limitation date should start to rein

from the 1st day of March, 2004 when the orders were

revalidated, without any objection by the respondents.

The present application was filed on 19th September,

2013 and when calculated from 1st day of March,

2004 the period is still not up to 10 years limitation

period. I therefore hold that the application is not

statute-barred.

The second issue is whether the judgment

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creditor has shown good grounds to warrant the

Court granting this application. As I said earlier in

this ruling, there is nowhere in the entire counter and

other affidavits of the respondents where they have

denied the fact that the orders in Exhibit

"��SMDF3" have been complied with by them.

The applicant deposed to the facts that he had started

the process of applying for writ of attachment vide

Exhibit "��SMDF4"�� but was frustrated by harm

twisting methods of the respondents.

I agree with the submissions of the learned Counsel

for the applicant that judgment of Courts remain

valid and subsisting until set aside by a Court of

competent jurisdiction. Orders of Court are not made

for fun; they must be obeyed and must not be made in

vain. See the following cases: BOCO vs. Aluko (2010)

16 WRN 188 at 190 r.14; Kwara Poly vs. Ogunrinde

(2009) 14 WRN 168 at 173.

I am satisfied from the affidavit and further affidavit

of the applicant and Exhibits "1"��, "��2", "3"��,

"��4"�� and "��SMDF1" respectively that the

applicant has

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shown good grounds to enable this Court exercise its

discretion in his favour. Accordingly, I hold that this

motion has merit and is hereby allowed. I make the

following orders:-

1. The judgment of this Court given on 12th March,

2001 remains valid and subsisting.

2. The respondents are hereby ordered to comply with

the orders made therein failing which the applicant

shall continue with his application to levy execution

in settlement of the judgment sum.

3. No order as to costs.

Aggrieved with the decision the (1) Bauchi State

Investment and Property Development Company Limited

and (2) Mallam Mustapha Mahe filed a Joint Notice of

Appeal on 23rd June, 2014 accompanied with two grounds

of appeal to challenge the decision. The Honourable

Attorney-General of Bauchi State filed a Cross-Notice of

Appeal against the decision on 8th September, 2015

accompanied by two grounds. The Notice of Cross-appeal is

incorporated in the supplementary record compiled and

transmitted to this Court by the Registry of the Court below

on 8th September, 2015.

The 1st and 2nd appellants��'

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brief was filed by Sangei, Esq. on 13th February, 2015. 1st

respondent�s brief was settled by Irorakpor, Esq. on

12th March, 2015 titled "��1st Respondent'��s Reply

Brief of Argument"��. The 1st and 2nd appellants filed a

Joint Reply Brief on 23rd March, 2015. The Cross-

appellant�s brief was filed on 6th October, 2015. All the

briefs were adopted on 6th April, 2016 when the appeal

came up for hearing.

The 1st and 2nd appellants formulated the following lone

issue for determination:

"Whether or not the Lower Court has jurisdiction to

grant the reliefs sought by the 1st respondent in this

case on a judgment which has become statute barred

for being over 10 years of its delivery (Distilled from

Grounds 1 and 2)."��

The 1st respondent distilled a lone issue for consideration

as follows:

"Whether the judgment of 12th March, 2001

revalidated on 1st March, 2004 sought to be executed

is statute barred by virtue of Section 16(1) and (2) of

the Limitation Law of Bauchi State."

In the brief filed by the Cross-appellant two issues were

formulated for

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determination as follows:

“1. Whether the Lower Court has jurisdiction to

entertain the action of the 1st respondent which was

caught off by statute of limitation.

2. Whether the Lower Court was right in relying on

Exhibit “SMDF1” notwithstanding that it is not a

complete document.”

I have observed that neither the 1st and 2nd appellants nor

the 1st respondent filed a brief of argument in respect of

the Cross-appeal. The 1st respondent did not also file a

cross-respondent’s brief in respect to the cross-appellant’s

brief of argument. The Cross-appellant did not file any brief

in answer to the 1st and 2nd appellants’ Notice of Appeal

and their Joint brief of argument. However, having read the

decision of the learned trial Judge and the arguments in the

briefs filed by learned Counsel representing the parties, the

only valid issue for determination in this Court is whether

the decision of the learned Chief Judge – I.M. Zango,

rendered on 21st May, 2014 can be supported having

regard to the affidavit/documentary exhibits placed before

him.

The sum total of the

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argument is that the learned Chief Judge had no

jurisdiction to have granted reliefs to the 1st respondent

due to the fact that the substantive decision was rendered

on 12th March, 2001 over ten years ago as at the time the

relief to enforce it was made on 21st May, 2014. The

application was caught by the provisions of Section 16(1)

and (2) of the Bauchi State Limitation Law, citing

Ibrahim & Ors. vs. Gaye & Ors. (2002) 13 NWLR

(Pt.784) 267 at 303 paragraph “D”; Purification

Tecnhique Nig. Ltd. & Ors. vs. Rufai Jubril & Ors.

(2012) 18 NWLR (Pt.1331) 109 at 114; Ogunlana vs.

Bada (2010) 1 NWLR (Pt.1176) 534 at 559

paragraphs “D”-“E”, Sulgrave Holding Inc. & Ors. vs.

F.G.N. (2012) 17 NWLR (Pt.1329) 309 at 343 and Abe

vs. University of Ilorin (2013) 5 SCNJ (Pt.111) 766 at

783.

Learned Counsel further argued that the 1st respondent’s

motion on Notice, filed on 25th September, 2013 to

revalidate the decision rendered since 2001 was statute-

barred hence should not have been re-validated, citing

Udoh Trading Co. Ltd. vs. Sunday Abere & Ors. (2001)

5 SCNJ 274; Lawan Sanda vs. Kukawa Local

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Government (1991) 2 NWLR (Pt.174) 379; Victoria

Ekeocha vs. Customs, Immigration & Prisons Board

(2007) All FWLR (Pt.392) 1976 and Ibrahim vs. JSC

Kaduna State & Anor. (1998) 12 SCNJ 255. The Court

was urged to allow the appeal, set aside the decision of the

Lower Court and dismiss the application.

Learned Counsel to the Cross-appellant argued that

revalidation of a judgment is strange and unknown to the

laws of our land and cannot be employed to extend the time

prescribed under Section 16(1) and (2) of the

Limitation Law (supra). Where the law provides time for

bringing an action, proceedings cannot be brought

thereafter, citing FBN Plc vs. Associated Motors Co.

Ltd. (1998) 10 NWLR (Pt.570) 480. That in Ogunlade

vs. Adeleye (1992) 8 NWLR (Pt.260) 409 at 427 the

Supreme Court held that a judgment creditor has to

enforce the judgment within the time stipulated by law

failing which he will be debarred from doing so. The 1st

respondent lost the right to enforce the judgment after the

time stipulated by the Law (supra) argued learned Counsel,

citing JFS Investment Ltd. v. Brawal Line Ltd & Ors.

(2010) 12 SCNJ 275; William O. Olagunju & Anor. vs.

Power Holding

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Co. of Nigeria Plc (2011) 4 SCNJ 192; Ohakim vs.

Agbaso (2010) 7 SCNJ 137 and Ali Wakili & Anor. vs.

Mallam Buba & Anor. (Unreported) CA/J/160/2013

delivered on 10th July, 2015 per Hussaini, JCA.

The response of the 1st respondent in the brief is that the

decision of 12th March, 2001 was revalidated on 1st

March, 2004 hence could be enforced, citing Boco vs.

Aluko (2010) 16 WRN 188. Learned Counsel showed the

Court how the appellants and cross-appellant had

frustrated all efforts to enforce the decision of Darazo, C.J.,

delivered since 12th March, 2001, arguing that the 1st

respondent should not be deprived of the fruit of the

decision, citing Unilorin Teaching Hospital vs.

Abegunde (2012) 43 WRN 59 at 69. Learned Counsel

urged the Court to dismiss the appeal.

A judgment or decision of a competent Court of record is

valid from the date of delivery until set aside by the Court

either ex debito justitiae on grounds of lack of jurisdiction

or by a Court of Appeal. See Akinbobola vs. Plisson

Fisko (1991) 1 NWLR (Pt.167) 270 at 299. An order of

Court is needed to set aside a valid judgment even on

grounds of being a nullity. See Akinfolarin vs.

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Akinola (1995) 4 SCNJ (Pt.1) 30 at 48-49; Aladegbemi

vs. Fasanmado (1983) 3 NWLR (Pt.81) 129. The

decision rendered by Darazo, C.J., on 12th March, 2001 has

not been set aside by an appellate Court hence remained

valid and enforceable. Order 39 Rules 6 and 7 of the

Bauchi State High Court (Civil Procedure) Rules,

1988 reads as follows:

"6. A person directed by a decree or order to pay

money or do any other act is bound to obey the decree

or order without any demand for payment or

performance, and if no time is therein expressed he is

bound to do so immediately, after the decree or order

has been made (except as, to costs the amount

whereof may require to be ascertained by taxation)

unless the Court has enlarged the time by any

subsequent order.

7. The Court at the time of making any judgment or

order, or at any time afterwards, may direct the time

within which the payment or other act is to be made

or done, reckoned from the date of the judgment

order or from some other point of time, as the Court

thinks fit, and may order interest at a rate not

exceeding ten Naira per centum per annum to be paid

upon any judgment,

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commencing from the date thereof or afterwards as

the case may be."

But I do not think the Court can enlarge the time under the

above provisions by any subsequent order in conflict with

the provisions of Section 16(1) and (2) of the Bauchi

State Limitation Law which provides as follows:

�16(1) Action shall not be brought upon any

judgment or on the interest on any judgment debt

after the expiration of ten years from the date on

which the judgment becomes enforceable or the

interest becomes due, as the case may be.

(2) For the purpose of Subsection (1) of this section

the term �judgment� shall apply to any final

judgment for payment of a specific or specified sum

of money whether at law or in equity and shall include

a judgment on a charge on land.�

Ten years is limited by the legislature as to the period an

action can be brought to enforce a valid judgment, namely,

�from the date on which the judgment becomes

enforceable or the interest becomes due, as the case may

be� under Section 16(1) of the Law (supra). The

decision of Darazo, C.J., was a "��final

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judgment" within the contemplation of Section 16(1) and

(2) of the Law (supra).

An "��action"��, according to the legal meaning of the

term, is a proceeding by which one party seeks in a Court

of justice to enforce some right against, or to restrain the

commission of some wrong by another party. More

concisely, it may be said to be the legal demand of a right,

or the mode of pursuing a right or judgment. The word

further implies the existence of parties, of an alleged right,

of an alleged infringement thereof (either actual or

threatens), and of a Court having power to enforce such

right. In its wider meaning the term includes both civil and

criminal proceedings..." It is, however, generally used in

a more restricted or popular sense as denoting a civil

action commenced by writ or plaint. See Halsbury's

Laws, 3rd edition cited in Words and Phrases Legally

Defined, Vol.1 (A-C).

A "��motion" is defined in Osborn'��s Concise Law

Dictionary, 9th edition, page 257 as, "An application

to a Court or Judge for an order directing something

to be done in the applicant'��s favour"�� The motion

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on notice filed by the 1st respondent on 19th September,

2013 was an "��action"�� seeking to enforce the decision

of Darazo, C.J., delivered on 12 March, 2001. Between 12th

March, 2001 to 19th September, 2013 is more than the ten

years prescribed under Section 16(1) and (2) of the

Bauchi State Limitation Law for enforcement of

judgment. At no time whatsoever has it been shown the

invalidity of the said judgment which, according to the 1st

respondent had to be revalidated as the case may be.

In Sammon vs. Byrne (1926) I.R. 411 Kennedy, C.J.,

explained at page 420 that, �In my opinion we must

give effect to the requirement of the statute (Section

3(2) of the Increase of Rent and Mortgage Interest

(Restrictions) Act, 1920 (repealed which enacted that

where the rent of a dwelling house to which the Act

applied was increased, no such increase was due or

recoverable until the landlord had served upon the

tenant a �valid� notice in writing of his intention

to increase the rent) that the not ice be a

"valid" notice... "Valid" means more than correct in

form; substance as well as in form."

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To "��validate" is to legally render or strengthen

something valid or to render or declare legally valid; to

confirm the validity of (an act, contract, deed, etc,) or

legalize. See the Shorter Oxford English Dictionary of

Historical Principles, Vol.2, page 2449. If at no time the

decision of Darazo, C.J., was invalidated, how can it be

revalidated by the orders of I.M. Zango, C.J., so as to

become enforceable after the expiry of ten years of its

delivery? Under what provision of the Law or Rules of

Court did the learned Chief Judge act to entertain and

grant the application after the period of ten years? I see

none.

Order 11 Rule 10 of the Sheriffs and Civil Process Act

Cap S.6, Laws of the Federation of Nigeria, 2004

provides as follows:

"��10. Subject to any provision to the contrary, any

application by a party for an order or direction of a

Court in relation to any judgment, execution, or

process shall be made in the same manner as an

application for an interlocutory order in that

Court.�" Order 11 Rule 10 of the Rules (supra) is

�subject to any provision to the contrary"�� namely,

Section

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16(1) and (2) of the Bauchi State Limitation Law

(supra). For the meaning of �subject to any

provision"�� usually employed in a statute or law ��

see Idehen vs. Idehen (1991) 7 SCNJ (Pt.2) 196 at

215-216; Tukur vs. Government of Gongola State

(1989) 9 SCNJ 15 at 40 and Aqua Ltd. vs. Ondo State

Sports Council (1988) 10-11 SCNJ 26 at 51.

Order 40 Rule 7 and Order 47 Rule 1 of the Bauchi

State High Court (Civil Procedure) Rules provides as

follows:

"��40(7) The summons or notice of motion shall be

served on the person against whom the order for the

release of the person detained is sought and on such

others persons as the Court or Judge may direct, and,

unless the Court or Judge otherwise directs, there

shall be at least five clear days therein for the hearing

of the application.

xxxxxxxxxxxxxx

47(1) Subject to the provisions of the High Court Law,

the Court may at its discretion, appoint any day or

days and any place or places from time to time for the

hearing of actions as circumstances require."

I do not see the relevance of these provisions to the

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grant of the application to revalidate the judgment

delivered by Gwarzo, C.J. on 12th March, 2001.

Rules of Practice and Procedure have not conferred

jurisdiction on the learned Chief Judge to extend the time

for enforcement of judgment beyond the 10 years

stipulated by the legislature under Section 16(1) and (2)

of the Bauchi State Limitation Law. See the State vs.

Onagoruwa (1992) 2 SCNJ (Pt.1) at 19; Onuorah vs.

Kaduna Refining Petrochemical Co. Ltd. (2005) 21

NSCQR 130 at 140 and Guaranty Trust Co. of New

York vs. Hannay & Co. (1914-15) All E.R. Rep. 24 at

35. The legislature would have provided instances as to

when the time for enforcing judgments after ten years from

delivery if that was the case. Then learned Chief Judge,

could on application, grant such a remedy.

In Maxwell On the Interpretation of Statutes, 12th

edition, page 33 appears the following statement of the

law: "��A case not provided for in a statute is not to be

dealt with merely because there seem, no good reason

why it should have been omitted, and the omission

a p p e a r s i n c o n s e q u e n c e t o h a v e b e e n

unintentional."�� See Lloyds Bank vs. Elliot (1947) 1

All E.R. 79.

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I.M. Zango, C.J., had no statutory authority to invoke his

judicial powers to deliver a legislative decision by

extending the time for the enforcement of the decision of a

brother Chief Judge after the expiry of ten years. The

decision of the Lower Court is set aside. The motion filed

on 19th September, 2013 to enforce the decision of Darazo,

C.J., delivered on 12th March, 2001 after ten years is

hereby dismissed. The parties to bear their respective

costs.

ADZIRA GANA MSHELIA, J.C.A.: I had the opportunity ofreading in advance the leading judgment of my learnedbrother, Tur, JCA just delivered. I agree with his reasoningand conclusion. My learned brother has adequately treatedthe issues raised for determination in this appeal. I havenothing useful to add. I also allow the appeal and set asidethe decision of the Lower Court. I abide by otherconsequential orders, inclusive of costs.

RIDWAN MAIWADA ABDULLAHI, J.C.A.: I have had theprivilege of reading in draft the lead decision delivered bymy learned brother, JOSEPH TINE TUR, JCA. I am in fullagreement with the reasoning and conclusions. I

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have nothing useful to add. I, therefore abide by the

resolution of issues as done by my learned brother in the

lead decision. I also allowed the appeal, set aside the

decision of the Lower Court and dismissed the motion filed

on 19th September, 2013 by one Alhaji Aminu Yakubu

Wanka, the 1st respondent in this appeal.

Parties to bear their individual costs.

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